Justice swings in the balance

BY PROF. DERSHOWITZ

As the hunt for terrorists continues in the aftermath of the World Trade Center catastrophe, law enforcement officials are assuring the international community that any accused terrorist brought to trial before an American court would receive a fair trial. This assurance is being offered in order to counter suggestions for a trial in front of some kind of international tribunal.

Our own courts have at least one distinct advantage over international tribunals. Every defendant in an American court has the right to trial by jury, whereas international trials are generally conducted in front of judges. And in highly political cases — and any international trial of an alleged global terrorist would be distinctly political — judges are likely to be far less independent than jurors, and/or more likely to do the bidding of the governments that selected them for the tribunal. Many judges have future judicial and political aspirations, and all judges want to be well regarded among their patriotic peers.

A jury, on the other hand, disperses after completing its singular job of administering justice in a particular case, and the individual jurors return to the prior anonymity of their lives. Government officials can (and do) whisper to judges, but they cannot whisper to jurors, since anything communicated to a juror must be a matter of record. Jurors often refuse to do the bidding of the government, as evidenced by the recent refusal of a New York jury to impose the death penalty on the terrorist it convicted of blowing up an American embassy and killing numerous people. Juries do, of course, make mistakes — perhaps even more often than judges do, but jury mistakes are less likely to be a function of political pressures. Emotions, of course, are extremely high throughout the United States, and a fair jury trial will be much more difficult to ensure, but so will a fair trial before judges. Were I defending an accused terrorist — even after the recent disaster — I would almost certainly prefer a jury trial to a trial before a judge.

The issue of who would actually defend an accused terrorist in front of an American jury raises the most daunting questions regarding the possibility of a fair trial in this country. Within hours of the terrible events of September 11, 2001, my telephone began to ring off the hook. The second question invariably put to me — the first was, Is your family okay? — was whether I would defend the people who did this. It was not so much a question as a plea: “You’re not going to defend these bastards, are you?” Even today, people stop me on the streets to urge me not to defend accused terrorists. It seems as if most Americans believe in the right of every defendant to be represented by a zealous lawyer — as an abstract matter. But when it comes to the hard cases — the cases of defendants accused of the most despicable crimes — attitudes change. Americans want to be sure that every accused murderer is represented by a lawyer, as long as that lawyer isn’t very good or doesn’t try too hard to win! No one complained about Timothy McVeigh’s lawyer, because he went through the motions and lost. But millions of Americans were furious at the O. J. Simpson defense team, because we used every procedure and tactic legally available to us. It was only after we won that we began to receive death threats.

The threats have already begun in regard to the World Trade Center case, even before there is a case, and despite the fact that I am not a trial lawyer and have expressed no interest in defending any accused terrorist. But threats of this kind will have an impact on those lawyers who may be asked to perform the patriotic duty of defending anyone accused of blowing up the World Trade Center. Yes, it would be a patriotic duty, comparable to the duty performed by prosecutors — or doctors who ministered to the wounded victims. But the defense lawyer’s job is far more difficult, controversial and in some respects hazardous. The lawyers who end up representing accused terrorists — even bin Laden, if we are fortunate enough to bring him to trial — will be vilified and threatened, especially if they provide the kind of zealous advocacy demanded by the Constitution. They will be providing a constitutional service to clients they detest and fear. They will receive no praise for doing their job, especially if they do it well.

This is the great paradox of our legal system. We boast of a process in which the most despised are treated fairly and represented zealously, and yet we condemn those who provide this constitutionally required zealous representation. Unless we begin to understand how inconsistent we are, we will not be true to our claim of providing the fairest trials of any nation in the world.

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